Earlier this summer the California legislature proposed a new “anti-paparazzi” bill, which NPPA opposes. More recently, Actresses Halle Berry and Jennifer Garner testified before the California State Assembly, voicing their support for the bill that carries with it serious First Amendment implications. The measure would make it illegal to photograph a child because of their parent’s job (i.e, acting) without the parent’s permission, and expands the scope of existing California harassment law while increasing the penalty for a violation. Photographers convicted under the measure could face up to year in prison. SB 606 would also allow an aggrieved party to pursue enhanced civil suit against a photographer.

If the bill is ultimately signed in to law, anyone with a camera who tries to get a snapshot of a celebrity’s child could be liable if their conduct “alarms, annoys, torments, or terrorizes the child” and causes “substantial emotional distress.” It’s not the clearest of legal standards, and the bill doesn’t offer much more in the way of explanation, something NPPA General Counsel Mickey Osterreicher took issue with in opposing the bill. “We are extremely concerned that the bill as it pertains to photography and recording is overly broad and vague and infringes upon otherwise protected forms of speech and expression,” Osterreicher said, also noting that the terms used in the bill are “vague and susceptible to subjective interpretation.”

The mercurial relationship between the Hollywood “paparazzi” and the stars they photograph is well documented. Confrontations are not uncommon. Protecting children is certainly a laudable goal, but there are already laws in place for situations when someone, photographer or otherwise, steps over the line. With this in mind, Osterreicher contends that the measure in question unjustifiably blurs the line between actual harassment and valuable First Amendment activities, saying “[the bill] fails to recognize those acts done for valid newsgathering or expressive purposes and in fact creates additional liability for visual journalists and members of the public with a camera.”

“[T]he First Amendment has permitted restrictions on few historic categories of speech, including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct,” Osterreicher continued. “Visual images and recordings of another person, albeit a child, who is out in public where there is no reasonable expectation of privacy should not be added to that list.”

Again, there’s a difference between punishing photographers who harass someone and defining photography as harassment in and of itself.

This isn’t the first time the California legislators have targeted photographers. A 2010 anti-paparazzi law was called into question earlier this year, when a judge threw out charges against a photographer who authorities say was driving recklessly while attempting to get picture of Justin Bieber. The judge said the law was unconstitutionally broad and violated the First Amendment. The NPPA along with the Reporters Committee for Freedom of the Press and six other media organizations filed and Amicus Letter Brief on behalf of the photographer. That ruling is currently under review.

SB 606 passed the California State Assembly and is set to go to appropriations committee. As the bill moves closer to becoming law, legislators should take care not to allow a distaste for the manner in which some photographers conduct themselves to undermine their ability to uphold their duty to defend free speech rights guaranteed to all citizens.

*** UPDATE *** In the wake of opposition from NPPA and other groups the CA Assembly Judiciary Committee made both AB-1256 and AB-1356 “2 year bills.” A 2 year bill is one which will not move out of the policy committee this year. It is eligible to be taken up again at the beginning of the 2nd year of the biennial session thus the term “2 year bill.” In January, the Legislature will hear all bills introduced in the 1st year and those that pass muster will begin to move through the process. This is very significant because every other anti-paparazzi bill that has been introduced has flown through the Legislature. This is the first time one has been held up. While the AB-1256 and AB-1356 are not dead, this indicates the sponsors may have a difficult time getting out of Judiciary in January.

The National Press Photographers Association (NPPA) today sent a letter to California Assembly Member Richard Bloom opposing two recently filed anti-paparazzi statutes that he sponsored. The NPPA was joined by twenty-six other organizations in sending this letter, including the Associated Press Media Editors, Digital Media Law Project at Harvard University’s Berkman Center for Internet & Society, Bloomberg News, North Jersey Media Group Inc., The New Yorker, E.W. Scripps Company, The New York Times, The Los Angeles Times, Society of Professional Journalists, Radio Television Digital News Association, The Associated Press, National Public Radio, Inc., The McClatchy Company, Reuters News, Time Inc., The Washington Post, Reporters Committee for Freedom of the Press, Picture Archive Council of America, Cox Media Group, American Society of News Editors, California Newspapers Partnership, The First Amendment Coalition, Courthouse News Service, The Newspaper Guild, Communications Workers of America, Association of Alternative Newsmedia and San Francisco Bay Media Associates.

The letter is written in opposition to proposed bill AB-1256, “An act to amend Section 1708.8 of, and to add Section 1708.9 to, the Civil Code, relating to civil law.” Proposed bill AB-1256 would expand upon California’s constructive invasion of privacy law. The letter also expresses opposition to AB-1356, “An act to amend Section 1708.7 of the Civil Code, relating to stalking,” which would enhance California’s anti-paparazzi statutes.

“We believe the creation of a civil cause of action for the “constructive invasion of privacy” is overly broad and vague and imposes greater civil penalties upon otherwise protected forms of speech and expression,” wrote Mickey Osterreicher, general counsel for NPPA. Osterreicher continued, “We are also concerned that remedies for invasion of privacy and trespass are already properly addressed by current California statutes and that statutory and punitive damages will further chill free speech and create uncertainty about liability.” “Additionally,” stated Osterreicher, “the definition of “commercial purposes” fails to distinguish those acts done for valid newsgathering purposes and in fact penalizes publishers and broadcasters along with visual journalists and members of the public with a camera.”

In the letter Osterreicher cites recent Supreme Court cases which support NPPA’s position that AB-1256 and AB-1356 are unconstitutional, including U.S. v. Stevens, 559 U.S. ___, 130 S. Ct. 1577 (2010) (holding the Animal Crush Video Prohibition Act of 2010 unconstitutional); California v. Superior Court of California (Raef), Case No. BS140861 (holding California statute AB-2479, an anti-paparazzi statute, unconstitutional); and Branzburg v. Hayes, 408 U.S. 665 (1972) (holding that “without some protection for seeking out the news, freedom of the press could be eviscerated”).

In another related matter a California assembly member withdrew his proposed “ag-gag” bill hours before it was to be considered at a scheduled hearing.

The measure, AB-343, sponsored by Jim Patterson, R-Fresno, originally imposed a “duty to report animal cruelty” that would have required “any person who willfully or knowingly photographs, records or videotapes animal cruelty . . .” to “submit all original photographs, recordings or video to local law enforcement and the owner of the animal(s) or a representative of the owner within forty eight hours of taking such photographs, recordings or video.”

NPPA and other groups opposed the bill as violating the Shield Law provisions of the California Constitution and Code of Evidence; as well as being unconstitutional under the First, Fourth, Fifth and Fourteenth Amendments in that it abridged free speech and press and constituted an unreasonable seizure lacking in due process.

“The NPPA is very proud to have the support of so many state and national organizations in its fight against these ongoing First Amendment erosions,” said NPPA President Mike Borland. “We hope that lawmakers around the country will realize that there is a better way to address their constituent’s concerns than to propose unconstitutional bills,” he added.

One question that I have long felt to be open is whether or not a news photographer, whose business is taking pictures of people, could be liable for misappropriation of likeness for using someone’s image without consent on a website designed primarily to sell that photographer’s services, or the images themselves.

First, let me explain a little bit about “misappropriation of likeness,” also referred to as the “right of publicity.” This is one of the privacy torts. Basically, every person has the right to control the commercial use of their “likeness,” that is, the picture of themselves – that is why Michael Jordan was paid to endorse Nike. Commercial use can mean use in trade, or use in a way that proposes a transaction. A photographer’s website, when it exists solely to promote that photographer’s professional services and licensing, is a website promoting a product and service.

There is a First Amendment exception to the right against misappropriation, so of course, the subjects of your photographs have no right to control your use of those images in a First Amendment use, such as in a newspaper, book, documentary movie, or news website.

This photo of well-known author Sandra Cisneros can be used without her permission for an article about her or her books. However, it couldn’t be used without permission for an advertisement to sell shawls, her signature accessory. (Photo by Alicia Wagner Calzada)

But that all changes when the same photo is used for commercial purposes, to sell a product or service. If I were using a photo of Shirley Jones to market my business selling psychedelic school buses, I would need her consent. Knowing this, the question arises, if I use a photo of Shirley Jones walking the red carpet, to market my photos of Shirley Jones, do I need her consent?

A court in California said no, at least not in the circumstances of one case, and last week an appeals court agreed. Jones sued Corbis for violating her right of publicity because they displayed her name and image without her consent on their website as sample images of what could be licensed. The display of the images of Jones was for the purpose of selling a product (the product is a license for the photo of Shirley Jones). All of the photos in question were taken at a red carpet event.

In California, a person can consent to the use of their name or likeness in writing, but the consent can also be implied. The trial court ruled that Jones consented to the taking of the photos, knew that such photos were widely distributed, and in fact, in “at least one of the events at which the pictures were taken, a notice was posted at the entrance of the red carpet. The notice stated that by entering the premises, [Jones] consented to being photographed, and her name, voice and likeness being exploited by any and all means in connection with the event without limitation.” Jones v. Corbis Corp., 815 F. Supp. 2d 1108, 1114 (C.D. Cal. 2011) aff’d, 11-56082, 2012 WL 2884790 (9th Cir. July 16, 2012).

The court held that “It is undisputed that [Jones] voluntarily posed for photographers, who she knew would display her images to prospective buyers, for over 40 years without objection. It was well understood in the entertainment industry that potential customers would not purchase images they could not see before the purchase.” Id.

Furthermore, Shirley Jones “knew and understood that photographers on the red carpet could employ third parties to assist them in distributing her photos.” Id.

Of course, this does not mean that Jones’ publicity rights do not exist in regards to the advertising and marketing of other products. The court specifically noted that it’s ruling was limited to holding that the singer/actress consented to the display of her likeness “for the purpose of distributing the images themselves.”

What does this mean for photographers who want to use images of people on their websites? Well, it doesn’t answer all questions, but when a celebrity or other person consents to their photo being taken, they might also be consenting to the use of their image for the purposes of selling the license to that photo. To me this means, if the photos on your website are available to be licensed, and the person in the photo consented to the taking of the photo, you are that much closer to winning on this issue. For this reason, it might be useful to clarify that all of the images on your website are available to be licensed.

Importantly this case involved an interpretation of California law, and did not address the issue of photos taken without the consent of the subject, or photos that promote a photography business but aren’t available for license. But it is still useful information when making decisions on using photographs.

The problem is that in a time of catchy phrases, it seems that many media outlets are unable or unwilling to take the time to distinguish between the two.

In the aftermath of actor Alec Baldwin’s assault on photographers who were waiting for him on a public street outside the New York City Marriage License Bureau this week, the distinction between the use of the pejorative “paparazzi” as a way to denigrate members of the media is not only unfortunate, but does a disservice to all photographers and journalists who strive to earn a living through visual storytelling.

As a former photojournalist with almost 40 years of experience in both print and broadcast journalism, I strongly believe in personal accountability for our actions and the importance of maintaining the credibility of our profession. I also agree that “accuracy in our work and integrity in our relationships with the public we serve are essential qualities for all photojournalists.” It is for that reason that I am a strong proponent of the NPPA Code of Ethics, which “attempts to foster the spirit of honesty in all aspects of our professional lives.”

In this era of tweets and live-streaming it is certainly important to get the news out fast, if not first; but accuracy should still be the overriding priority. Broadcasting or publishing the absolute latest information does not absolve the press of its obligation to be responsible. The public may wish to dwell in gossip and speculation but reporters, broadcasters, editors and publishers should not.

Which brings us back to the issue of who is a photojournalist and who is a paparazzo? A variety of sources define paparazzo as a noun referring to a freelance photographer who specializes in images of famous people for sale to magazines and newspapers while often invading their privacy to obtain such photographs or video. The word “paparazzi” is the plural of “paparazzo.”

The term gained popularity after the 1960 film La Dolce Vita, directed by Federico Fellini, in which one of the characters is a news photographer named Signor Paparazzo. It is said that Fellini used the word because in Italian it is similar to another word for small mosquito, and to the filmmaker was descriptive of the very annoying noise made by that buzzing insect. In the years since it has been used to describe Ron Galella and his photographic pursuit of Jacqueline Kennedy Onassis, leading to the case of Galella v Onassis and a restraining order keeping Galella a “respectful” distance away from the late First Lady and her children.

Over the years there have been numerous lawsuits by photographers who claim they were injured by celebrities, and some by celebrities who have sued to enjoin photographers from coming too close or invading their privacy.

The term “photojournalist,” on the other hand, refers to those dedicated to a specific aspect of journalism that captures still images and audio-visual recordings for public dissemination in print, by broadcast or online. It is widely understood that photojournalists adhere to strong ethical guidelines ensuring honest, objective and compelling images, created in a straightforward manner while remaining as unobtrusive as possible.

Standing on a sidewalk to take a picture of a celebrity does not make a photographer a paparazzi any more than if he or she were waiting to take a picture of a politician or a criminal. Photojournalists often risk their lives and sometimes are killed while covering wars, political uprisings and natural disasters. Would anyone think to call them paparazzi?

The so-called “legitimate press” has always sought to distinguish itself from the less-than-savory “tabloid paparazzi.” Lately traditional publishers also attempt to distinguish between “mainstream media” and citizen journalists, activists, and bloggers. But all groups use video and still images taken by the very people they distance themselves from in an attempt to compete which blurs the line and makes the definition of who is a journalist even more elusive. This in turn makes the public less trusting and ultimately undermines a free and vibrant press.

None of this absolves anyone of us from our responsibilities. No matter how quickly we deliver it, the message should still be worth hearing. No matter how up-close we can get, the images should still be worth viewing. No matter how advanced the technology, we are all still human.

When reporting on the altercation between New York Daily News photographer Marcus Santos and celebrity Alec Baldwin, it would be wise to look at Santos’ career before labeling him as a paparazzo. According to his website he has been a photojournalist since the late 1990’s with a long list of credits and awards. He prides himself on covering spot news, which is evidenced by his photos of the October, 2011 East River helicopter crash. He has also covered world events in Haiti, Pakistan and Sri Lanka. Marcus tells me that he was dispatched by the Daily News to photograph Baldwin after the paper received a tip that he was at the marriage license bureau. So for anyone to say he is a paparazzo is not only grammatically incorrect, but totally inaccurate. In an interview with Charlie Rose after the incident, Baldwin also said that Marcus was not part of the “legitimate press” in a further attempt to justify his actions that day. Such self-serving comments are not only wrong but demean all photojournalists.

In a society increasingly reliant on information and communication, those in the media should be ever vigilant of their obligation to provide accurate, unbiased and timely information rather than rushing to fill space and time with the latest titillating revelations. That goes both for photojournalists who unintentionally get drawn into the story and for the journalists, editors and headline writers who report on those incidents.

Today when you attacked photographers who were waiting outside the city Marriage License Bureau in New York City, it was not the first time that you’ve assaulted members of the very media who helped to make your name a household word. It’s been reported that after today’s incident you Tweeted, “A ‘photographer’ almost hit me in the face with his camera this morning. #allpaparazzishouldbewaterboarded.” You then continued to display your insensitivity by Tweeting, “I suppose if the offending paparazzi was wearing a hoodie and I shot him, it would all blow over …”.

Rather than make light of a national racial tragedy, I suggest that if you don’t want to be recognized when you go out in public it is you who should be wearing something over your head.

Eyewitnesses to today’s incident report that not only were the photographers not near you at the time you aggressively went after them, but that they were in retreat as you continued your unprovoked assault. Whether you like it or not, you are a public figure involved in a newsworthy event. And as you well know from your lifetime of celebrity public life, there is no expectation of privacy on a public street.

No one is really surprised that you continue to act in this manner, given past performances. But as a former photojournalist who is now general counsel for the National Press Photographers Association (NPPA), I object to your combative actions against photographers who were doing nothing more than waiting to take your photograph, an activity you’ve willingly participated in thousands of times, posing when you thought it was in your best interest.

I do not know whether those you attacked have filed assault charges, but I hope they do. Because until you and others like you are held accountable for your actions, this supposed “open season” on photographers will unfortunately continue. It is all too easy to denigrate working journalists by calling them “paparazzi,” but not all photographers deserve that demeaning title, just as all actors are not boors or bullies.

For someone who is politically active and who routinely calls for holding the government accountable, which is one of the central roles of the press, it is more than a little disappointing to watch you literally attack the media as you did today. I hope you pause to reflect on your criminal actions. Just think of the nice images you could have made walking hand in hand together, rather than the headlines you’ll get tomorrow for committing assault.

Normally I spend my time dealing with misguided police officers or security guards who incorrectly believe that they can abridge a person’s First Amendment rights to photograph and record in public. Maybe today you took your cues from them. In any case, the next time you see an adoring fan or anyone with a camera who is waiting to take your picture on a public street, why not just count to 10 and say “cheese.” In the meantime, please don’t assault the news photographers who are diligently working to earn a living wage.